In the wake of President Trump’s decision to take the United States out of the Paris Climate Accord, the progressive Left has found an array of heroes at the local level. Reacting to the news, at least three states, 30 cities, 80 universities, and hundreds of businesses have promised to go independently to the United Nations and commit themselves to the Paris climate accord. Billionaires such as Michael Bloomberg have spearheaded the charge to the press, wallowing in the pages of the New York Times that their coalition will “do everything America would have done if it had stayed committed.” California Gov. Jerry Brown plans on (presumably privately) jetting to China to meet with international climate delegates.
“It is a little bold to talk about the China-California partnership as though we were a separate nation,” said Brown to the Sacramento Bee. “But we are a separate nation.”
It’s not just “a little bold” for Brown to be negotiating this way—it’s illegal.
Much as he might like to be, Jerry Brown is not the President of the United States, the California legislature is not Congress, and California is not a “separate nation.” As such, as any deal brokered by his still unnamed coalition would inevitably run into legal trouble. Although President Obama refused to treat it as such, the Paris accord is a classic example of a treaty, and Article I, Section 10 of the Constitution prohibits any state from entering into a treaty under any circumstances. Even if you construe the Paris accords as a mere “agreement,” Article 1, Section 10, prohibits states from entering into agreements or compacts with a foreign power without consent of congress. Thus, the only thing that Brown can legally accomplish is voluntarily and unilaterally binding California to independent economic and climate policies that don’t conflict with federal law.
Brown may think he’s on “the side of angels”— he said as much to Politico yesterday—but he and his coalition are at risk of running foul of the highest law in the land. Without question, Brown has the right to independently coalesce with other states, as he plans to with Washington Governor Jay Inslee and New York Government Andrew Cuomo. And he may endeavor to create his own compact with similar provisions as the Paris accords. But he must stay away from foreign affairs.